The story so far

In the run-up to the election Louise Mensch broke the story that the Obama Justice Department and federal law enforcement authorities had obtained a Trump-related FISA warrant in October following the denial of an earlier FISA warrant request the previous June. Subsequent reports lent credence to Mensch’s story. On its way out the door the Obama administration trashed the “minimization” procedures protecting the privacy of American citizens caught in the FISA net. Andrew McCarthy raised a red flag in the troubling NRO column “FISA and the Trump team.” Earlier this week the New York Times reported the involvement of Obama administration officials in disseminating the information obtained along the way.

While the commentariat was rending its garments over the mere prospect that Trump might have his political adversary, Hillary Clinton, investigated if he won the election, Obama was actually having Trump investigated.

To rehearse briefly, in the weeks prior to June 2016, the FBI did a preliminary investigation, apparently based on concerns about a server at Trump Tower that allegedly had some connection to Russian financial institutions. Even if there were such a connection, it is not a crime to do business with Russian banks — lots of Americans do. It should come as no surprise, then, that the FBI found no impropriety and did not proceed with a criminal investigation.

What is surprising, though, is that the case was not closed down.

Instead, the Obama Justice Department decided to pursue the matter as a national-security investigation under the Foreign Intelligence Surveillance Act (FISA). In June, it sought the FISA court’s permission to conduct surveillance on a number of Trump associates — and perhaps even Trump himself. It has been reported that Trump was “named” in the application, but it is not publicly known whether he (a) was named as a proposed wiretap target, or (b) was just mentioned in passing in the application.

Understand the significance of this: Only the Justice Department litigates before the FISA court; this was not some rogue investigators; this was a high level of Obama’s Justice Department — the same institution that, at that very moment, was whitewashing the Clinton e-mail scandal. And when Justice seeks FISA surveillance authority, it is essentially telling that court that there is probable cause to believe that the targets have acted as agents of a foreign power — that’s the only basis for getting a FISA warrant.

In this instance, the FISA court apparently found the Obama Justice Department’s presentation to be so weak that it refused to authorize the surveillance. That is telling, because the FISA court is generally very accommodating of government surveillance requests. Unwilling to take no for an answer, the Obama Justice Department came back to the FISA court in October — i.e., in the stretch run of the presidential campaign. According to various reports (and mind you, FISA applications are classified, so the leaks are illegal), the October application was much narrower than the earlier one and did not mention Donald Trump. The FISA Court granted this application, and for all we know the investigation is continuing.

There are two significant takeaways from this. First, a FISA national-security investigation is not a criminal investigation. It is not a probe to uncover criminal activity; it is a classified effort to discover what a potentially hostile foreign government may be up to on American soil. It does not get an assigned prosecutor because the purpose is not to prove anything publicly in court — indeed, it is a major no-no for the Justice Department to use its FISA authority pretextually, for the real purpose of trying to build a criminal investigation.

Second, remember when the New York Times gleefully reported in mid January that three Trump associates — Paul Manafort (who was ousted as campaign manager in August), Manafort’s associate Roger Stone, and Trump’s investor friend Carter Page — were being investigated over alleged ties to Russia? Well, deep into the report, after all the heavy breathing about potential Trump–Russia ties, the Times report conceded that this investigation may very well have nothing to do with Trump, the presidential campaign, or Russian hacking. To the contrary, indications were that it arose out of consulting Manafort had done for Putin’s puppet party in Ukraine, beginning in 2005. That engagement is surely unsavory, but there may not be anything criminal about it, and it is not in any event related to whatever Russia was up to in the American presidential election of 2016.

Bottom line: The Obama Justice Department and the FBI spent at least eight months searching for Trump–Russia ties. They found nothing criminal, and clearly nothing connecting Trump to Russian hacking….